Detroit City Ry. v. Mills
| Decision Date | 08 May 1891 |
| Citation | 48 N.W. 1007,85 Mich. 634 |
| Court | Michigan Supreme Court |
| Parties | DETROIT CITY RY v. MILLS et al. |
Appeal from circuit court, Wayne county, in chancery; ------, Judge.
William Look and F. H. Chipman (Don M. Dickinson, of counsel,) for appellants.
Brennan & Donnelly and Hoyt Post, for appellee.
The complainant was organized in May, 1863, under chapter 94 How. St. It has from time to time extended its tracks, under the direction of the common council, upon the streets of the city, until it now has many miles of road and large amounts of money invested. It has, during the 27 years of its existence, been engaged in the business of carrying passengers to and from different parts of the city. January 23, 1889, the common council authorized the complainant to lay, construct, use, and operate a single street-railway track in, along, and through Mack street, from its conjunction with Gratiot avenue to the city limits. It fixed the rate of speed at not less than six nor more than ten miles per hour. It also provided that, whenever the complainant should deem it advisable, it might substitute in lieu of animal power such system of electric or other motive power, except steam, as should seem best in its judgment, for the purpose of properly and safely conducting its said business in said city of Detroit upon any or all of its said lines now in use and operated, or hereafter to be used and operated, by said company, and that such change should be made under the supervision of the board of public works. This ordinance was duly accepted by the complainant. Complainant proceeded to construct its track upon Mack street, and concluded to use the system of electric motive power instead of horse-power. This system is the same as the one involved in the case of Potter v. Railway Co., (Mich.) 47 N.W. 217, (decided at the present term.) The system and the construction of the road are there sufficiently described. Complainant was proceeding to erect its poles upon the side of the street fronting the premises of the defendants, the poles being placed 125 feet apart. The defendants interfered with the construction by cutting down the poles, and threatened to continue to do so. The complainant thereupon filed its bill of complaint to restrain this interference on the part of the defendants. The defendants answered admitting their action, and claiming their legal right to thus prevent the construction of an electric street railway on the street. They allege that street-railway cars propelled by electricity, cannot lawfully be used on the street in the manner intended by complainant. They deny the power of the common council to permit the erection and maintenance of this electrical apparatus without the consent of abutting property owners, or without condemnation proceedings, and claim that the construction and use of this railway limits, impairs, and impedes the use and enjoyment of their property, and imposes an additional servitude upon the street. They also filed a cross-bill praying for a perpetual injunction against the use of such railway. The case was heard upon pleadings and proofs, and decree entered in favor of the complainant, the railway company.
1. The act under which complainant is organized is attacked as unconstitutional and void in that it embraces more than one object, which is not expressed in its title. The original act was passed in 1855, under the title of "Train Railway Companies." Its purpose is stated in section 1 as follows: "Any number of persons, not less than three, may be formed into a corporation for the purpose of constructing, owning, and operating a train railway or road, to be operated by horse or other animal power, by complying with the following requirements." The first twelve sections provided for the details of the organization, and for the obtaining of lands, by purchase or condemnation, for its road-way, gates, toll-houses, etc. The next two sections provided for the use of the road by any person, by paying certain tolls for every coal car, ore-car, or other vehicle drawn over it. It is unnecessary to mention the provisions of the other sections of the original act. Nothing is said in the act about the carriage of passengers. This act was amended in 1861 by adding two new sections providing for the organization of companies under the act to construct and operate railways in and through the streets of any town or city, upon obtaining consent of the municipal authorities, and under such regulations as they might from time to time prescribe. In 1867 three additional sections were added, and in 1871 two providing additional regulations for the construction and operating of street railways in cities and along the public highways. The amendment of 1867 also provided for the operation of the cars by steam, or any power other than animal power, under the authority of the municipality. The alleged dual object consists in this, viz., that the original act provided for toll-roads for the carriage of freight, while the amendment provided for railways for the transportation of passengers. Street railways have existed under this act for nearly 30 years. Millions of money have been invested in them. They have been extensively used by the people. This complainant has, during its existence, been engaged exclusively in the carriage of passengers. It has become not only a convenience, but a necessity, to the people. In the many cases brought to this court involving the various provisions of the act, its constitutionality was never raised, and is now for the first time doubted. If its constitutionality were doubtful, courts might well be justified in upholding the practical construction which has thus been adopted by the people. The people have acted and invested upon the faith of its validity for the last 27 years, not only in the city of Detroit, but in many other cities of the state, and the state authorities have never questioned it. In construing the constitutionality of a statute, as well as in interpreting a provision of the constitution itself, the practical construction which the people have placed upon it during a series of years will be adopted by the courts, unless there is a clear infraction of some constitutional provision. In such cases the argument ab inconvenienti will be allowed to have great weight Cooley, Const. Lim. 81; Stuart v. Laird, 1 Cranch, 299; Martin v. Hunter's Lessee, 1 Wheat. 304, 351; Cohens v. Virginia, 6 Wheat. 264; Bank v. Halstead, 10 Wheat 51; Westinghausen v. People, 44 Mich. 265, 6 N.W. 641; People v. Hammond, 13 Mich. 256; Frey v. Michie, 68 Mich. 323, 36 N.W. 184; People v. Goodwin, 22 Mich. 500. But upon its merits we see no force in the position. The general purpose of the act is to provide for local railway transportation. Its title is "An act to provide for the construction of train railways." Whatever may be included under the title of an act when passed may also be included by subsequent amendment. The general railroad law is silent in its title as to what may be transported under it, yet no one ever thought to question its validity upon the ground that it provided for the carrying of both freight and passengers. If the provisions of the amendment are germane to the object expressed in the title, this is all that the constitution requires. In determining this question the law must be considered as a whole, as amended. The amendment is incorporated into the original act, and becomes a part of it. The same rule of construction will be applied to the amended act as to the original act. The word "train," as used in this law, is defined to be a "continuous or connected line of cars or carriages on a railroad." Certainly the carriage of passengers is as germane to the object expressed in the title as is the carriage of freight. Either could be incorporated into the law by amending without violating the constitutional provision. Counsel for the defendants are in error in interpreting the original act to be limited to the carrying of "ore, mineral, copper, and iron." The corporations therein provided for had the right to carry any and all kinds of freight.
2. It is next insisted that the municipality of the city of Detroit does not possess the power to permit the complainant to operate its cars by electricity, and that, therefore, the complainant is acting without authority of law. The precise claim is that chapter 94, How. St., does not authorize the use of this motive power by the companies to be organized under it, but limits them to the use of such powers as were known at the time of the passage of the act and the amendments thereto. Granting this position to be correct, it follows that the action of the complainant is ultra vires of the corporation. The obvious and conclusive answer to this claim is that it is a matter between the complainant and the state. The defendants are not in position to raise the question. The mere usurpation of corporate authority does not confer upon the individual the right to bring suit to restrain the unlawful exercise of authority, nor to raise it collaterally. If the state chooses to waive it, or by its silence permit the action, no others can complain, so long as the personal or property rights of the individual are not invaded or affected. It therefore follows that, unless these defendants are injured, they are not concerned in this question. Swartwout v. Railroad Co., 24 Mich. 393; Jones v. Habersham, 107 U.S. 174, 2 S.Ct. 336; Newell v. Railway Co., (Minn.) 27 N.W. 839; Railway Co. v. Orton, 32 F. 471; Bridge Co. v. Prange, 35 Mich. 400. Until the right has been determined in a direct proceeding brought by the state or the city, the complainant may continue the use of such power.
3. It is...
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